Wood v. Commonwealth

• Decision Date: 17 November 1927
• Citation: 149 Va. 401
• Parties: C. L. WOOD v. COMMONWEALTH.
• Court: Virginia Supreme Court

Page 401

149 Va. 401

C. L. WOOD v. COMMONWEALTH.

Supreme Court of Virginia, Richmond.

November 17, 1927.

1. APPEAL AND ERROR — Record — Testimony of Accused not made Part of the Record by Bill of Exceptions, or Otherwise — Case at Bar. — The instant case was upon a writ of error to a judgment against accused in a case of assault and battery. The accused was the only witness who testified in his behalf. His testimony was copied in the record, but it was not certified and made a part of the record by bill of exceptions, or otherwise.

Held: That the testimony of the accused could not be considered by the Supreme Court of Appeals, and that the case would be disposed of as if no evidence had been introduced in his behalf.

2. ASSAULT AND BATTERY — Battery. — A battery always includes an assault.

3. ASSAULT AND BATTERY — Battery — Definition. — A battery consists of the wilful or unlawful touching of the person of another by the assailant, or by some object set in motion by him. The slightest unlawful touching of the person of another is a battery, for the law cannot draw the line between different degrees of violence.

4. ASSAULT AND BATTERY — Injury to the Mind or Feelings — Intent. — Not every touch is a battery, nor is it necessary that the touch should result in injury to the corporeal person. It is sufficient if it does injury to the mind or feelings. Whether the touch constitutes a battery "will depend, not upon the amount of force applied, but upon the intent of the actor."

5. ASSAULT AND BATTERY — Intent. — The intent of accused charged with assault and battery may often be gathered from the conduct of the aggressor, viewed in the light of the attending circumstances.

6. ASSAULT AND BATTERY — Evidence Sufficient to Sustain Conviction of Assault — Case at Bar. — The instant case was a prosecution upon an indictment charging accused with assault and battery upon a girl of fourteen. Accused was convicted. The evidence for the Commonwealth showed that the prosecutrix was standing in front of the counter in the store of accused and accused reached across the counter and ran his hand down the neck of her dress onto her bosom. On another occasion accused tried to sit in her lap. And still on another occasion he attempted to put his arms around her. Owing to the fact that accused's testimony was not made a part of the record by bill of exceptions, or otherwise, the case was to be disposed of by the Supreme Court of Appeals as if no evidence had been introduced in his behalf.

Held: That the evidence for the Commonwealth was sufficient to sustain the conviction of assault.

7. APPEAL AND ERROR — Assault and Battery — Where Evidence Establishes Accused's Guilt — Other Assignments of Error — Case at Bar. — In the instant case, an appeal from a conviction for assault and battery, the action of the court in holding that the conduct of the accused towards the prosecutrix constituted an assault was assigned as error. The testimony of the accused was not considered on appeal as it was not incorporated in the record by bill of exceptions, or otherwise. The uncontradicted evidence of the prosecutrix clearly established accused's guilt of the assault and battery.

Held: That this being true, the consideration of the remaining assignments of error by accused would be unprofitable, as the judgment must be affirmed.

Error to a judgment of the Circuit Court of Grayson county.

The opinion states the case.

R. L. Kirby and J. M. Parsons, for the plaintiff in error.

John R. Saunders, Attorney-General, Leon M. Bazile and Lewis H. Machen, Assistant Attorneys-General, for the Commonwealth.

WEST, J., delivered the opinion of the court.

C. L. Wood was convicted under an indictment charging him with assault and battery upon Ruby Pugh, and sentenced to pay a fine of $100. To that judgment this writ of error was allowed.

The facts as disclosed by the evidence for the Commonwealth are as follows: According to the testimony of Ruby Pugh, age fourteen years, C. L. Wood owned and conducted a store on State highway No. 12, a short distance from the public school building at Grant, in Grayson county, Virginia. She was a pupil in this school and occasionally made purchases at this store. In the fall of 1924, she was standing in front of the counter in the store, when the accused reached across the counter and ran his hand down the neck of her dress onto her bosom. On another occasion she was seated in the store and Wood tried to sit in her lap. On a third occasion he attempted to put his arms around her over her arms. She pulled away from him and ran to the front door of the store and he followed her, but seeing a man passing along the road turned back at the door.

According to the testimony of Nina Carson, who lived something over a mile from Wood's store, on one occasion when no one was in the store, except her and the accused, the accused put his hands upon her bosom...